'Professor Torture' stands by his famous memo

March 17, 2007
'Professor Torture' stands by his famous memo

Yoo's answer to "How far can we go?" turned out to be indistinguishable from "as far as the president wants to." The most controversial part of Yoo's advice was that, as commander-in-chief in war, the U.S. constitution allows the president to be the judge of what is and what is not "necessary" to prosecute war successfully. That's the claim the OLC later explicitly disavowed.

Yoo's theory of the president's practically untrammelled powers in war is, to put it mildly, not the orthodox position on what the constitution permits. "Well, it may not be orthodox," Yoo replied with a smile, "but it is in fact the way presidents have behaved during wartime, and it is supported by legal precedent. Generally, the courts have not tried to interfere with the president's power to conduct war ... I think the OLC's reversal was pure politics. The administration just lost the courage of its convictions."

You mean, I ask, that they are said to be legal because it is decided they don't inflict the level of pain required to count as torture? "Correct," Yoo answered. "There's a footnote in the new OLC memo which states that explicitly. I know that the new advice hasn't made any difference to what the CIA does. Nor, incidentally, has the McCain Act." (This is the legislation, sponsored by Senator John McCain, that explicitly prohibits U.S. officials from using torture.)

That act changes the definition of torture from the infliction of "severe" pain to the infliction of "serious" pain. It doesn't, however, define what serious pain is.

"Does water-boarding (inducing the perception of drowning in someone to make him talk) inflict serious pain?' Yoo asks. "I doubt that the CIA thinks that it does ... or that it is going to stop using the technique, if the stakes are high enough." So despite the new law, the old tactics will be available? "I think so. And more important, so do they ..."